Total Pageviews

Wednesday, 23 November 2016

My first post was on 2nd October 2011 and was all
about attacks on Human Rights following the Conservative Party Conference. The
blog has since covered most topics imaginable including – LASPO, Motor Insurance,
the ‘Compensation Culture’, thinking before you tweet and inappropriate
comments about a LinkedIn photograph.

My Blogger stats tell me that there have
been just over 167,000 reads.

As I embark on massive changes next year the time has also
come to re-think the blog.

In April 2017 I am stepping down as a partner in my current
firm and launching out on my own as a consultant, mainly assisting firms, small and
large, in PI, Clinical Negligence and Occupational Disease work. There will be
more shameless promotion of that venture nearer the day. But I am also planning
to devote more time to my lifelong obsession with Access to Justice.

After
today I will be posting under the new badge – Justice Matters. The plan is that
this will be wider than just a blog. A sort of one person lobbying project. In
fact I hope it won’t be just a one person venture. My hope is that, in time, it
will be a place for others to post articles, news, events and any other rants
on this crucial topic.

The seed of the idea was planted earlier this year when Lord
McNally – remember him? – suggested that we shut up about Access to Justice –

In the face of this comment it was clear that we needed more
noise than ever.

I expect to be exploring topics including access to advice
for benefit claimants, re-instatement of a properly funded legal aid scheme, pro
bono, court and tribunal fees, human rights, litigants in person, access to
assistance for victims of accidents and disease and other topics that will
certainly be raised in the next few years.

I am hoping that the new Justice Matters project will start
at the beginning of December.

Please let me know if you have any ideas, concerns topics,
suggestions or advice.

Thursday, 17 November 2016

In November 2015 the former Chancellor, George Osborne
announced plans the abolish the right to damages for whiplash injuries and to
raise the Small Claims limit in Personal Injury Claims. The effect of the
latter is to remove the right of victims of accidents to recover legal costs
from insurers.

This would leave most victims without legal representation against
insurers who have massive resources available to them – David v Goliath without
the slingshot!

A few weeks ago it seemed that these draconian proposals
were off the agenda for now –

I predicted then that the insurance industry would not leave
things there. Why would it? Insurers have been given all that they’ve asked for
from a very compliant Conservative Government and their friends in the media.

It is no great surprise therefore to see the plans revived
with a vengeance. It was announced yesterday that the MOJ is consulting on the
increase in the small claims limit and planning to cap the levels of damages
for whiplash. According to ITV news the Lord Chancellor Liz Truss talked of a ‘rampant
compensation culture’. There is also familiar rhetoric about clamping down on
fraud and saving billions in insurance premiums.

The consultation period is just a few weeks and is calculated
to close immediately after the Christmas break. This reduces the chances of an effective
response and suggests that Ms Truss is intent in giving this gift to insurance
companies regardless of any opposition.
The chances of all of this leading to any significant reduction in the cost of motor insurance are
equally mythical –

Victims will either act for themselves or be deterred from
claiming at all

All injury claims will be affected, not just whiplash

Law Firms across the country will close leading to hundreds
of job losses

Insurers’ profits will rise

This is a very disturbing day for us all.

Post Script
I have just read the Consultation Paper over lunch. It is worth a read. The proposals are not quite as draconian as the press reports and there are options for discussion. But I suspect the MOJ spin reflects their intentions.

What is notable is that at Page 78 of 78 pages of narrative is the following -

'We would also welcome views from respondents on the assumption in the IA that 85% of insurers savings will be passed onto consumers' Just in case you happen to blink and miss it!

It certainly appears that the quality of the service offered
by our courts has declined in direct proportion to the increase in fees.
Despite the availability of remission of fees in some cases there is no doubt
that this is having a major impact. In 2013 the fee for starting an action for
damages of £200k was £1250.00. This is now £10,000.00.

Lawyers who pursue actions for ordinary citizens of average means, usually pay the fees on behalf of their clients. Increases of this magnitude
seriously impact the commercial viability of this service.

The effect of all of this is that it is that victims of
accidents and medical negligence will find it harder and harder to pursue their
disputes through the courts. Those suffering the most severe injuries are the
worst affected.

It is not surprising therefore that lawyers for claimants
and defendants are actively considering alternatives. Litigation Futures
reported yesterday on an initiative from Liverpool based QC, Bill Braithwaite –

Braithwaite advocates the use of ‘neutral facilitators’ to
resolve disputes in major personal injury cases. He suggests that such facilitator can
be given such powers as are agreed by the parties – from mediation to full
decision making on all issues. This is an interesting idea but one which would
require much collaboration on both sides.

This follows on from last year’s launch of the Personal Injury
arbitration service –

Victims are never looking for litigation. They are looking
for answers, for resolution and for appropriate levels of damages.

I suspect that there will be more such initiatives and
referring disputes to the court will eventually become exceptional.

There are however some concerns. Will we ever see the levels
of co-operation required to make them work? Only last month lawyers who help
victims of medical negligence were called ‘vultures’ and ‘greedy ambulance
chasers’. Lawyers who help victims of accidents are regularly accused of
feeding a mythical ‘compensation culture’. I think much bridge building will be needed if
these alternatives are to succeed.

On the other hand, resorting to our civil courts will become
increasingly prohibitive. So some alternative will be the only way of securing
justice for those who cannot afford to pay the eye watering fees.

Will our civil courts then become a resource available only
to the wealthy?

Friday, 4 November 2016

It seems that the whole world is commenting on yesterday’s
decision of the High Court in relation to Brexit. In fact some press reporting has verged on the hysterical.

We need to make one thing clear from the start. This is not a judgment on Brexit itself. It is a judgment on what powers the government has, to make decisions in relation to Article 50 without referring to Parliament. The Lord Chief Justice could not have made this any clearer -

'It deserves emphasis at the outset that the court in these
proceedings is only dealing with a pure question of law. Nothing we say has any
bearing on the question of the merits or demerits of a withdrawal by the United
Kingdom from the European Union' .

I think everybody has now
heard of Article 50. This is the process that begins our exit from the EU. In
very simplified terms the court decided yesterday that the process cannot be
triggered by the Government. It has to be done by Parliament. It is a purely
legal point. It has nothing to do with the pros and cons of Brexit.

The Government argued that it could start the process without
going to Parliament because of 'Royal Prerogative'. These are words that most Law
Students forget shortly after finishing their degree. They rarely raise their
head in real life. Royal Prerogative describes decisions which the monarch of
the day could make without having to refer back to parliament. It is a concept
that goes back to the 14th Century and the days of power struggles
between the monarch and the barons.

Over time those powers have devolved to the government ministers. The powers are sometimes used in foreign affairs and might include the
making of treaties with other nations. For those who are particularly interested
there is a useful discussion in Wikipedia –

This is important in relation to yesterday’s decision. When we entered
the European Union in the 1970s Parliament enacted the European Communities Act
1972. If we want to exit the Union
that Act has to be repealed. The government’s case was that it must have been Parliament’s
intention in 1972 to give any future government power, by way of royal prerogative, the power
to cancel any treaties relating to our membership. This argument was very
firmly rejected by the Court.

The overriding point is that Parliament is sovereign. The
1972 Act was passed by Parliament. There is nothing in that Act to say that a future
government can cancel it. Only Parliament can repeal an Act that it has passed.
The Lord Chief Justice said

‘The most fundamental rule of the UK’s constitution is that Parliament
is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty
of Parliament it has been established for hundreds of years that the Crown –
i.e. the government of the day cannot by exercise of Royal Prerogative override
legislation enacted by Parliament.’

The government argued that this case was different. It
argued that it had the legal power to trigger Article 50 because this is all
about foreign relations and therefore within the Prerogative. This again was
rejected. It is self evident that laws enacted since we joined the EU have
become part domestic law. So as soon as Article 50 is triggered, UK laws will
be affected. This is not just about foreign affairs but will fundamentally
change our laws. Those powers are for Parliament and not the government.

The case will now go to the Supreme Court – possibly before
all 11 judges. I would be very surprised if their decision is any different.
There is nothing in either the 1972 Act or even the Referendum Act of 2015 that
gives Mrs May and her ministers powers to cancel an Act of Parliament. Many of
us have been saying this since June –

This is not a battle between the courts and Parliament. In
fact it confirms that nobody – neither judges nor the government can override
the supremacy of Parliament. In fact it is part of our historical protections.
The courts will not allow any government to act beyond its powers. If it wants
to change the law it can legislate and to do that it has to go through the
correct process.

So where does this leave Brexit?

I cannot imagine that Parliament will try and cancel the
result of the referendum. A majority of voters chose Brexit. It would certainly
trigger a major constitutional crisis if that outcome was blocked altogether. Indeed
many MPs who supported Remain have said that they will respect the will of the people.

What it does mean is that the process will have to be
carefully examined by Parliament. Brexit minister Davis Davies has acknowledged
that this would mean a new Act of Parliament –

This might slow the formal process but it will ensure that
the elected members of parliament will have the final say on the detail of the
exit.

It is easy to forget that this was something that was at the
heart of the Leave campaign i.e. the recovery of the supremacy of our parliament.

The High Court has confirmed this.

Yesterday’s judgment should be welcomed by both sides of the
debate itself. It is not a decision about the rights or wrongs of Brexit. It is
a clear line in the sand about what powers Ministers have to disregard those
elected by the people.

Tuesday, 1 November 2016

I joined on 1st November 1991 following the take-over
of his previous firm Ashby Cornforth & Co.

So this has got me thinking how things have changed.

Some developments have certainly been a good thing. Growing
a moustache for charity rather than fashion must be positive!

In those days you had a telephone with a dial. It was
attached to the wall and you were lucky to speak to a client directly unless
you called after work. There were a few very early mobile phones around but you
needed a trolley to carry them and they could certainly have been a murder
weapon on Cluedo.

There was a relatively new thing called a fax which some modern thinking lawyers were starting to use.

If you needed to go to court you had to get in the car and
drive there, unless you were close enough to walk. There was no such thing as a
telephone hearing or any other sort of conference call for that matter. Neither
was there any such thing as a costs budget, case management or Mitchell. In
fact Directions were relatively sparse and the first you saw of your opponents’
evidence was when you turned up at court. The thought of experts actually
having a discussion was a thing or horror.

Today you can handle a litigation caseload and hardly ever
leave your desk. This makes the practice of law quicker but less sociable. You
heard the gossip while waiting for your hearing; a sort of live Twitter!

One thing we did take for granted was Access to Justice. There
was something called a Green Form – largely due to it being a form that was
green. This entitled a person of limited means to half an hour’s advice on any
matter of law! You could give helpful initial advice and then extend the limit
to take things further or obtain an expert report. Back then, I did hundreds of
disrepair claims against local authorities. You could use the Green Form to get
a surveyor’s report and then apply for full legal aid.

Legal aid? Remember that? Who would have thought that Access to Justice would become a waste land?

Many accident claims were run on spec. It was a sort of
unofficial conditional fee arrangement where you only got paid if you won.
Politicians later realised that this could become the norm and the only
way to represent victims of accidents. A Labour government removed legal aid
for these cases. They created a world where we had no work on this basis and
then attacked us for being ‘no win no fee lawyers’.

It is also worth noting
that relationships between lawyers and insurers were very different. We
regularly spoke to each other. Every few weeks I would be visited by someone
from the Municipal Mutual, Guardian Royal Exchange, Iron Trades or Sun Alliance.
Over coffee and much conversation about football we would settle ten or more
cases. Nobody has heard of the ABI!

So much has changed. Some for the better some for the worse.
Litigation is faster, smoother and far more expensive.

Access to Justice is an endangered species and I hope that
it still exists in 25 years time…